ALJDEC decisions subject to certification as final

2019A-01110-CHC-ROC · Registrar of Contractors · 2019-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2019 APPEARANCES: James Steg appeared on behalf of Steg Custom Homes Inc. (“Complaint”). Anthony Lee England appeared on his own behalf (“Respondent”). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. On September 1, 1984, the Registrar of Contractors (“ROC”) issued License No. 059415 for Specialty Residential R-11 Electrical to Anthony Lee England, DBA England Electrical (“Respondent”). Respondent’s address of record for the license is 8312 West Donald Drive, Peoria, AZ 85383-2042. Anthony Lee England is listed on the license as Qualifying Party and Owner.[1] 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 059415, as reflected on the ROC’s public website on July 9, 2019. Such prior License record reflects that Respondent’s license is currently active. The license has never been disciplined by the ROC. The record also reflects that there are two open complaints against Respondent’s license, one of which is presumed to be related to this matter. Respondent has an active $4,250.00 surety bond issued through R L I Insurance Company effective December 26, 2014.[2] 3. On or about March 2018, James Steg (“Mr. Steg”), owner of Complainant, met with Respondent to discuss electrical work that needed to be done at 42850 North Hohokam Road, Cave Creek, AZ 85331. On May 3, 2018, Mr. Steg and Respondent entered into a verbal agreement whereby Respondent agreed to do electrical work for the above residential property for the sum total of $10,987.00. The project commenced on May 3, 2018. The project was completed by July 24, 2018. Mr. Steg paid Respondent a total of $10,987.00 on July 24, 2018. 4. On March 6, 2019, the ROC received an abandonment complaint from Mr. Steg which included a copy of the invoice between the parties. The ROC received proof of payment from Mr. Steg to Respondent. 5. Between March 13, 2019, and March 15, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, provided proper notice to them, and advised that an onsite review would be conducted at the project site by an ROC investigator on April 4, 2019, at 9:00 a.m. 6. On April 4, 2019, ROC investigator Chris Fultz (“Investigator Fultz”) conducted a review of the invoice issued by Respondent to Complainant. During the inspection, Investigator Fultz reviewed the work completed by Respondent, to date, and took about four photographs of the property. When he was finished, Investigator Fultz drafted Jobsite Inspection Notes. Respondent was not present during the inspection. 7. On or about April 18, 2019, Investigator Fultz issued a Directive From The Registrar (“Directive”) to Respondent because he substantiated Complainant’s allegation that Respondent abandoned the job. Specifically, Respondent was ordered to remediate complaint item 1, complete installation of lighting, via appropriate means. Respondent was put on notice that he had until May 6, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E). Respondent denied receipt of the Directive and, therefore, did not complete the project as directed. 8. On June 10, 2019, the ROC issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. Respondent was given until June 25, 2019, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. 9. Respondent did not file an Answer to the Citation with the ROC. 10. On June 24, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on August 7, 2019. Per the Citation, the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges: Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”). Charge 3: A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”)

11. At hearing, Investigator Fultz testified that he observed open junction boxes, unattached light fixtures, and exposed wires. He admitted that there was no contract but an invoice. He also stated that he did not know if Respondent received notice of the jobsite inspection. He opined that Respondent abandoned the project because Respondent never contacted Complainant. 12. At hearing, Mr. Steg testified, on behalf of Complainant. Respondent and Brian England (“Mr. England”), Respondent’s son, both testified. The ROC’s electronic hearing file and Notice of Hearing were admitted into the evidentiary record along with Respondent’s three exhibits. 13. Mr. Steg testified that he agreed with Respondent to have electrical work done at the residence located at 42850 North Hohokam Road, Cave Creek, AZ 85331. He stated that he signed a contract for the amount of $10,987.00 for the installation of the rough. 14. Per Mr. Steg, he paid Respondent $10,987.00 for the installation of the rough on July 24, 2018. He opined that the electric was partially completed because other electrical work, including Luminii Linear Illumination lights, kick lights, and outlets were not installed. Mr. Steg stated that Respondent completed the rough, was paid, and then abandoned the job. 15. Mr. Steg testified that he texted Respondent between the dates of August 2018 and November 2018 to complete the job. Mr. Steg was unable to produce any evidence of these text messages between those dates. 16. Mr. Steg stated that he was informed by his architect, Andrew Carson (“Mr. Carson”), that Mr. Carson reached out to Respondent in February 2019. Mr. Steg stated that he did not know what happened after that. 17. On cross examination, Mr. England asked Mr. Steg to produce the signed contract which Mr. Steg referred to in his testimony. The only document Mr. Steg identified was the invoice dated May 3, 2018. Mr. England also asked Mr. Steg about the amount of the contract. Mr. Steg admitted that the actual amount of the contract was $10,987.00 because he was tax exempt. He stated that he crossed out the tax amount because of his exemption. 18. At hearing, Mr. England testified that Respondent completed the work that was requested by Complainant. Mr. England testified that Respondent completed the rough and was paid for completion of the rough. 19. Mr. England stated that after that job was completed, Mr. Steg disappeared and there was no communication, or direction, from Complainant regarding the rest of the electrical work. Mr. England stated that he next heard from someone regarding the job in February 2019. Mr. England stated that Mr. Carson contacted Respondent about completing the job. See Respondent’s Exhibit 2. 20. Mr. England testified that Mr. Carson informed Respondent that Complainant had not finished the work at the residential location and the homeowner was unhappy with Complainant. Mr. England stated that Respondent waited to hear back from Mr. Carson or Complainant regarding the project but never heard back. 21. Mr. England testified that Respondent ordered specialty lights, in reliance on Mr. Steg’s work description when they discussed the job back in March 2019. Mr. England stated that Mr. Steg never paid Respondent for those lights and fixtures. 22. Mr. England testified that he and Respondent made attempts, as recently as June 2019, to see if they could get the job done. He stated that Respondent learned, from Mr. Carson, that Complainant abandoned the job at the residence. See Respondent’s Exhibit #3. 23. Mr. England opined that Respondent intended to finish the job completely but was never asked to complete it by Complainant. Mr. England stated that Mr. Steg never specifically requested Respondent to put the lights or fixtures in. Mr. England stated that neither he nor Respondent refused to do the job or finish the job. CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq. 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.[3] 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.[4] 4. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 5. Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” 6. Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” 7. Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.” 8. Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” 9. The evidence established Respondent was to complete the finishing work, i.e. installing Luminii Linear Illumination lights, kick lights, and outlets, upon notice from Complainant that the project was at that stage. Complainant never provided Respondent with that notice. Thus, Respondent did not abandon the project but was unable to complete the job due to Complainant’s inaction. Therefore, no violation of A.R.S. § 32-1154(A)(1) can be found. 10. No evidence was submitted to establish the work actually performed by Respondent was not in compliance with the ROC’s standards. It is uncontested that the work was not completed, but that does not necessitate a finding that Respondent acted in violation of A.R.S. § 32-1154(A)(3). 11. It is uncontested that Respondent did not receive notice of the Directive. Despite not having knowledge of the Directive, the evidence established that Respondent attempted to complete the job. 12. Therefore, because the ROC does not expect nor demand perfection from the licensees. Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(22) and A.R.S. § 32-1154(A)(1) unless it is given the opportunity to correct said issue. RECOMMENDED ORDER It is recommended that on the effective date of the ROC’s final order in this matter, ROC close as dismissed Complainant, Steg Custom Homes, Inc.’s, complaint in Case No. 2019-01110 against Respondent Anthony Lee England, DBA England Electric’s, License No. 059415. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, August 22, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACPIjEAP. [2] Id. [3] See Ariz. Rev. Stat. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). [4] See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826